S v Magoulaane and Another (KS26/04) [2007] ZANCHC 1; [2007] 3 All SA 627 (NC) (30 March 2007)

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[2007] ZANCHC 1
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S v Magoulaane and Another (KS26/04) [2007] ZANCHC 1; [2007] 3 All SA 627 (NC) (30 March 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION
Case Number: KS 26/04
Heard: 15/02/2007
Delivered:
30/03/2007
In
the matter between
:
FISAS
MAGOULAANE First Appellant
THEMBA
NTSHANGANA Second Appellant
and
THE
STATE
Respondent
Coram:
Kgomo JP
et
Bertelsmann J
et
Makhafola AJ
JUDGMENT
Bertelsmann
J
The
two appellants were accused in the Court
a
quo
of
murder, defeating the ends of justice and the possession of an
unlicensed firearm and ammunition. They were charged together
with
two other accused, who were acquitted of all charges. The
appellants were respectively accused number two and accused number
three in the Court
a
quo
.
The
principal charge of murder was based upon the allegation that the
accused killed one John Burger in Kimberley during the night
of the
11
th
to the 12
th
November 2003. The alleged motive for the murder was a conspiracy
to eliminate the deceased as a witness against the appellants,
who
were charged in another trial in Pretoria with motor vehicle theft.
This fact constituted the factual basis for the second
charge. The
third and fourth charges related to the unlawful possession of an
unlicensed firearm and ammunition that could be
fired from it.
The
appellants were convicted of the first two charges and acquitted of
the third and fourth charges. Each one of them was sentenced
to
life imprisonment on charge 1 and to five years imprisonment on the
second charge. The sentences must be served concurrently
as a matter
of law.
Both appeal against the conviction
and sentence on both counts.
THE FACTS
The deceased was a witness in criminal trial
in which the two appellants were charged with as many as 58 charges
of motor vehicle
theft. These charges were particularly grave
because the third accused was a police officer attached to the local
motor vehicle
theft branch when the murder was committed. The
deceased was the key witness against the appellants. The charges of
motor vehicle
theft had to be withdrawn after his death because no
further evidence was available to implicate the appellants.
The
court
a
quo
found,
in an excellently crafted and closely reasoned judgment, that the
appellants had conspired to kill the deceased. The State
proved
beyond a reasonable doubt that the appellants had enlisted the help
of the other two accused and arranged the hit man who
fired the
fatal shots. The motive for the contract murder was held to be the
elimination of the victim as the critical witness
in the motor
vehicle theft trial.
Although
it was not proved that either of the appellants fired the fatal
shot, both were involved in the planning of the killing.
The second
appellant was in the company of the first appellant and the State’s
principal witness, an accomplice by the name
of Johannes Sikhosana,
commonly known as Jack, before the murder was committed. It is
common cause that a .38 revolver was inspected
at that juncture. The
second appellant described it as the best weapon for their purpose
as it would not leave cartridges behind.
According
to the evidence of the accomplice, the second appellant referred to
the deceased as the person who was to be eliminated
with that
revolver. He had to be murdered to prevent him from testifying. This
was openly discussed between the appellants and
the accomplice Jack.
The
first appellant came to Kimberley for the night during which the
fatal shooting took place. It is common cause that he made
several
calls from his cell phone to that of the second appellant shortly
before the murder was committed. It is also common cause
that he
phoned the second appellant in the early hours of the 12
th
November 2003 and told him that “
they
had taken the old man out” (“hulle het die ou man weggevat”)
.
According
to the second appellant’s own evidence, his reaction to this news
was “
I
told him that I had heard nothing yet, that I would have to read
the newspapers.” (“Ek het vir hom gesê dat ek nog niks
gehoor
het nie, ek sal maar die koerante lees
.”
).
He
then asked the first accused whether anyone had “… seen them.”
Correctly, the Court
a
quo
held
that this answer was clearly one that could only have been given by
someone involved in the commission of the crime, particularly
in the
light of the fact that the second appellant was a police officer.
The
appellants were consequently convicted as charged on the first two
counts
.
THE
APPEAL ON THE FACTS
The appellants attacked the trial Court’s finding on the
facts on the grounds that the evidence of the accomplice Jack
Sikhosana
should not have been accepted.
This argument cannot be sustained and was advanced rather
hesitantly by counsel for the appellants. The learned Judge
a quo
thoroughly analyzed the evidence of all witnesses and
meticulously dealt with all positive and negative aspects thereof.
It would
be tedious and quite uncalled for to repeat the logical
argument that led the trial Court to the inevitable finding that the
evidence
established the guilt of the appellants beyond reasonable
doubt. We can do no better than endorse the result. The appeal
against
the findings of fact must be dismissed.
THE ADMISSIBLE EVIDENCE
The appellants object against the admission of the evidence
of three State witnesses, Stanley Paul Ingwane, Petrus Massango and

Johannes (Jack) Sikhosana, on the grounds that their evidence was
obtained in conflict with the provisions of section 35 of the
Constitution, 108 of 1996. It is the appellants’ case that the
police were made aware of the existence of these witnesses through
a
statement that the second appellant made to the investigating
officers after his arrest.
This statement is said to have been obtained in conflict with
the second appellant’s fundamental rights as enshrined in section
35. The evidence obtained through the information contained therein
was tainted to such an extent, so the argument goes, that
it should
not have been admitted against either of the appellants.
The factual background against which this argument is
advanced, is the following:
Immediately after the murder, the finger of suspicion
pointed in the direction of the appellants. Their names were
supplied to
the police by the deceased’s widow.
The second appellant was arrested in the early hours of the
16
th
November 2003;
He was arrested by three former colleagues, captain Lourens,
inspector Luis and inspector Laubscher;
He was interrogated at the police offices and then made a
statement that sought to place the blame largely on his
co-appellant
and to exculpate himself;
This statement was admittedly made after captain Lourens had
emphasized to the second appellant that only a court could
indemnify
him in terms of section 204 of the Criminal procedure Act
51 of 1977;
The statement was found, upon closer analysis by the
investigating officers, to have presented a selective version of
the truth
that was designed to mislead the police and the
prosecution rather than to assist the investigation by revealing
incriminating
facts that would assist in apprehending and
convicting the other perpetrators involved in the commission of the
murder;
Other persons involved in the crime were traced as a result
of a cell phone number mentioned in the second appellant’s
statement;
These persons included the three State witnesses referred to
above;
One of these, Jack Sikhosana, made a clean breast of it and
was called as a witness in terms of section 204. His evidence
eventually
led to the appellants’ prosecution and conviction;
After the prosecution became aware of the unsatisfactory
nature of the second appellant’s statement, it decided to
prosecute
the second appellant rather than to use him as a witness
to whom the benefits of section 204 would be extended if he, in the

opinion of the trial Court, answered all questions “
frankly
and honestly”
even though they would incriminate him;
The State tendered the second appellant’s statement in
evidence during the trial;
The trial court held the statement to be admissible in spite
of objections by the defence.
The second appellant objected against the admission of his
statement on the grounds that:
His fundamental rights to a fair trial were infringed by the
failure of the investigating officers to warn him that the benefit

of being called as an accomplice witness in terms of section 204
would be withdrawn if his statement proved to be unsatisfactory
or
mendacious;
He was misled by the police to make a statement by the
assurance that he would be called as an accomplice witness if he but
made
a statement, regardless of its content;
The State was
mala fide
in prosecuting him after he
made a statement;
His statement led the police to the three State witnesses
whose evidence ensured his conviction, in the light of which it was
a
violation of his right to a fair trial not to keep the promise to
use him as a State witness.
The trial Court held, as a matter of proven fact, that the
police had duly warned the second appellant of the consequences if
his
statement were to be found to be misleading or substantially
untrue. There is ample evidence to support this finding.
In addition, the trial Court correctly emphasized that the
second appellant is no ordinary member of the public, but a
professional
police officer who had 24 years service at the time of
his arrest. He had arrested persons himself during the course of
his career
and had informed them of their fundamental rights during
such arrests.
The trial Court was therefore of the view that the appellant
was aware of his fundamental rights even if nothing had been said to
him upon his arrest or before he made the statement concerned.
Consequently, the second appellant’s fundamental rights were not
infringed when he made the statement, regardless whether “his
rights were read to him” or not. The Court
a quo’s
judgment
in the trial within a trial is reported as
S v August
2005
(2) All SA 605
(NC).
This approach is indubitably correct. Section 35 (1) (a) and
(b) of the Constitution guarantee the right:
“
(a) to remain
silent;
to be informed promptly-
of the right to remain silent; and
(ii) of the consequences of not
remaining silent…”
The fundamental right protected by the Bill of Rights is not
the right to be informed as such, but the accused’s right to know
that he or she may remain silent, will be presumed to be innocent,
has the right not to co-operate with the police investigators
and is
aware of the consequences of a decision not to remain silent.
If the arrested person has, by virtue of his office or
profession acquired this knowledge prior to and entirely independent
of her
or his arrest, the failure by the police officers to warn him
or her of his rights does not constitute an infringement of his or
her fundamental right; and the failure to inform the arrestee of
matters that are well known to her or him cannot render a subsequent
trial unfair as the arrestee was not prejudiced thereby: See
generally,
S v Shaba en ‘n ander
1998 (1) SACR 16
(T).
The attack on the admissibility of
the second appellant’s statement on this ground must therefore
fail
.
The suggestion that the investigating officers promised the
second appellant to call him as a witness in terms of section 204 of
the Criminal Procedure Act regardless of the truth of contents of
the statement he would make, needs only be made to be rejected
as
nonsensical.
The whole purpose of section 204 of the Criminal Procedure
Act is to create a mechanism in terms of which an accomplice may be
encouraged
to turn “King’s evidence”. Much as this practice
may leave the purist uncomfortable because of the moral implications
of
allowing a criminal to go free, crime can often not be
successfully prosecuted without the stratagem of persuading an
accomplice
to sell his fellows down the river.
In investigating offences and exercising a discretion whether
or not a particular suspect should be offered the opportunity to
escape
prosecution on specified charges, the prosecution exercises a
discretion that is only limited by considerations of fairness once
binding promises have been made to a witness who subsequently
incriminates herself or himself on the strength of that promise in
a
statement to the police: see:
S v Pillay and others
2004 (2)
SACR 419
SCA at 427c-d;
S v Coetzee
1990 (2) SACR 534
(A) at
541 c-d.
In principle, the prosecution, which is independent in the
exercise of its functions, may decide to withdraw the offer of being

an accomplice witness and prosecute the offender first considered as
a witness. This is particularly so in cases where the intended
accomplice witness makes an untruthful statement, see:
Wilson v
Director of Public Prosecutions
[2002] 1 All SA 73
(NC).
The prosecution is clearly entitled, at the very least, to
expect an accomplice witness to tell the full truth to the
investigators,
and nothing but the truth. Calling a dishonest
witness in a matter as important as this may result in the course of
justice being
frustrated and may enable the accomplice witness to
ensure that his fellow criminals get off scot-free.
Once it was clear that the second
appellant was undeserving of the trust the prosecution was prepared
to put in him, the decision
to prosecute him was the only justifiable
one.
The second appellant claimed, as a last resort, that his
statement to the police was the truth. That claim is as false as the
statement
itself and was correctly rejected by the trial Court. The
second appellant has only himself to blame for the consequences of
his
actions. There can be no suggestion that the trial was unfair or
that the evidence discovered as a result of the cell phone number
disclosed by him in his statement was incorrectly admitted.
The appeal
against the convictions is dismissed.
The appeal against the sentence was all but abandoned – and
rightly so. There can be no doubt that there are very aggravating

features in this case – the murder, executed with careful
deliberation and advance planning, was also an assault upon the
criminal
justice system itself, perpetrated by conspirators that
included in their number one who had sworn to uphold and defend it.
The
appeal against the sentence is dismissed.
It remains only to observe that the second appellant
motivated the need to murder the victim on the basis that
“The
old man will send us to prison”. (“Die ou man gaan ons tronk toe
vat”).
The old man did – in a tragically different way than
the appellants had feared.
____________________
E
BERTELSMANN
Judge
of the High Court
I concur
_____________________
F D KGOMO
Judge President
(Northern
Cape Division)
I
concur
_____________________
K MAKHAFOLA
Acting Judge
(Northern
Cape Division)
On Behalf of the First
Appellant: Adv. T Fourie (Legal Aid Board)
On
Behalf of the Second Applicant: Adv. B. Segone (Legal Aid Board)
On
Behalf of the Respondent: Adv. A. Van Heerden (DPP)